Page No.# 1/8 vs Smti Gita Devi And Anr
2022 Latest Caselaw 3030 Gua

                                                                    Page No.# 1/8

GAHC010122512014




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Pet./65/2014

            MUKUL CHANDRA DAS and ANR
            S/O LT. UMA DAS

            2: SMTI. ARPANA TALUKDAR @ DAS
            W/O SRI MUKUL DAS 1 and 2 BOTH ARE RESIDENTS OF HOUSE NO. 27
             PRAGATI NAGAR
             MATGHARIA
             NOONMATI
             P.S. NOONMATI
             GUWAHATI

            VERSUS

            SMTI GITA DEVI and ANR.
            W/O SRI JUNU DAS R/O VILL- BAMUNGAON 1ST PART, P.S. ABHAYAPURI,
            DIST. BONGAIGAON, ASSAM,

            2:THE STATE OF ASSA

Advocate for the Petitioner   : Mr. B. D. Goswami

Advocate for the Respondent : Mr. D. Das, Addl. PP, ASSAM

Mr. D. Bora Page No.# 2/8

BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

Date of hearing : 02.06.2022.

& Date of Verdict (CAV) : 17.08.2022.

VERDICT (CAV)

1. Heard Mr. B. D. Goswami, learned counsel for the petitioner and also heard Mr. D. Bora, learned counsel for respondent No. 2 as well as Mr. D. Das, learned Addl. PP for the State respondent No. 1.

2. This application under Section 482 of the Code of Criminal Procedure, 1973, is preferred by the petitioners, namely Sri Mukul Chandra Das and Smti Arpana Talukdar @ Das, for quashing the criminal proceeding, being CR Case No.575/2012, under SectionS 352/506/34 IPC, pending before the Court of learned Judicial Magistrate First Class, North Salmara, Abhayapuri.

3. The factual background, leading to filing of the present petition, is briefly stated as under:-

"Smti. Gita Devi, wife of Sri Junu Das of Abhyapuri, had lodged one complaint before the learned JMFC, North Salmora, Abhayapuri, on 09.10.2012, alleging inter alia amongst others that on 16.09.2012, Sri Page No.# 3/8

Bijay Barman, who is a lecturer of Abhyapuri college and is residing with his family in a rented house at Abhyapuri, proceeded to Guwahati for his research work and asked Shri Gaurav Das and Rakesh Barman to look after his house in his absence. On 17.09.2012, at about 3.30 PM in the afternoon, Sri Mukul Das and Smti Arpana Talukdar @ Das entered into the house of Bijay Barman and beaten up Gaurav Das and Rakesh Barman and Mukul Das attempted to kill Gaurav Das by strangulation, by holding his neck, and dragging him to the gate of the compound, as a result, the condition of Gaurav Das became serious but somehow Gaurav Das manage to escape from the clutch of Mukul Das and though Rakesh Barman tried to save Gaurav Das from the clutch of Mukul Das, then accused Smti. Aparna Das had interfered with the same and assaulted him. Thereafter, Mukul Das and Aparna Das, with the help of the father-in- law and mother-in-law of Bijay Barman, took away the wife of Bijay Barman and his children from his house and they threatened the son of the complainant and Gaurav Das to lodge them in jail by filing a false case in future. Upon the said complaint, the learned Judicial Magistrate, First Class, took cognizance of the offences under Section 352/506/34 IPC, against the petitioners. "

4. Being highly aggrieved, the petitioner approached this Court for quashing the aforesaid complaint case on the ground that the learned Court below had erred in law and also in facts in taking cognizance which is being filed with the deliberate intention of causing harassment to the petitioner and with ulterior motive for wreaking vengeance on the petitioner, and the allegation made in the complaint are absurd and inherently improbable on the basis of which no Page No.# 4/8

prudent person can ever reach a just conclusion that there is sufficient ground for proceeding and there is inordinate delay of 22 days in filing the complaint which has been filed as a retaliation and the complaint so filed is an abuse of the process of the Court and that order of taking cognizance is bad in law and liable to be set aside and quashed and therefore, it is contended to allow the petition.

5. Mr. B. D. Goswami, learned counsel for the petitioner, submits that the present complaint is a counter blast of the FIR lodged by the victim after 20 days of the incident and that the delay for a period of 7 days, though explained, yet, for rest of the period, it has not been explained and the complaint is a foster mother of Bijay Barman and that the case is filed with an ulterior motive and the foster mother resides in Abhyapuri and that his case is covered by the ratio laid down in the case of State of Haryana-vs- Bhajan Lal and Others, reported in Suppl.(10 SCC 335, and that at the relevant time of occurrence husband of the complainant was not present and no case is made out under SectionS 352/506/34 IPC and therefore, it is contended to allow the petition by quashing the aforesaid complaint.

6. Per contra, Mr. D. Bora, learned counsel for the respondent No. 2, submits that the delay in lodging the complaint has been properly explain in Paragraph No. 6 of the petition and that the alleged offences are clearly made out from the facts mentioned in Paragraph No. 5 and that prima facie case is made out against the petitioner and there is no point for quashing the complaint case and therefore, it is contended to dismiss the petition.

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7. On the other hand, Mr. D. Das, learned Addl. PP, submits that there is prima facie case against the accused persons and the same has been clearly set out in Paragraph 5 of the petition and there is sufficient ground for proceeding and the learned Court below has not committed any illegality or impropriety in taking cognizance and therefore, it is contended to dismiss the petition.

8. Having heard the submission of the learned Advocates of both the sides, I have carefully gone through the petition and the grounds mentioned therein and also carefully gone through the records of C.R. Case No. 575/2012 and the witnesses examined by the learned Court below.

9. From the allegation made in the FIR and also from the statement of the witnesses examined by the learned Court below including the statement of the complainant, it cannot be said that no offences under Section 352/506/34 IPC is made against the petitioner. Though, the learned counsel for the petitioner submits that there is delay in lodging the FIR and the same has not been properly explained, yet, it appears from the paragraph No. 6 of the complaint petition that an explanation is offered for the delay in filing the complaint and whether such an explanation is believable or not is to be determined at the stage of trial, not, at this stage in dealing with a petition under section 482 Cr.P.C.

10. Though the learned counsel for the petitioner submits that his case is squarely covered by the Point No. 1 & 3 of the paragraph No. 8 (1) (a) and 3 of the judgment of Hon'ble Supreme Court in the case of Bhajan Lal (supra), yet, this Court left unimpressed by such submission. It is to be mentioned here Page No.# 6/8

that while dealing with quashing of FIR/complaint, Hon'ble Supreme Court in the case of Bhajan Lal (supra) has held that:-

8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide- ï7 myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

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(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

11. Here in this case, as discussed above, a prima facie case under Section 352/506/34 IPC is made out against the petitioner. Therefore, this Court is of the view that the ratio laid down in the Bhajan Lal (supra) would not come into aid of the petitioner.

12. It is to be mentioned here that Neeharika Infrastructure Private Limited-vs-State of Maharshtra and Others; reported in 2021 Online SC 315, Hon'ble Supreme Court held that while examining an FIR or complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. It is further held that criminal proceeding would not be scuttled at the initial stage and quashing of complaint/FIR would be exception Page No.# 8/8

rather than an ordinary rule.

13. It is further held that a prayer for quashing an FIR is made by the alleged accused and the Court, when exercising the power under Section 482 Cr.P.C., only has to consider whether the allegation in the FIR discloses commission of cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR.

14. In view of the above and also in view of ratio laid down by the Hon'ble Supreme Court in the case of Neeharika Infrastructure Private Limited(supra), this Court is of the view that this is not a fit case where a complaint can be quashed by exercising the power under Section 482 Cr.P.C.

15. In the result, I find no merit in this petition and accordingly, the same stands dismissed. The CR case record be returned back to the learned Court below. Interim order, if any, stands vacated. The parties have to bear their own costs.

JUDGE

Comparing Assistant